カウンセリング

2010年3月14日日曜日

c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The law prohibits such practices, and the government generally respected these provisions in practice.

NGOs and foreign diplomats reported instances of alleged physical abuse in some prisons. In February, in the civil case against Wakayama Prefecture and the state regarding three police officers convicted for the 2004 death of a suspect, the court found Wakayama Prefecture responsible and ordered compensation.

The government continued to deny death-row inmates and their families information about the date of execution. Families of condemned prisoners were notified of the execution after the fact. The government stated this policy was to spare the prisoners the anguish of knowing when they were going to die. Condemned prisoners, although held in solitary confinement for an average of almost eight years until their execution, were allowed visits by their families, lawyers, and other persons. An NGO reported that prisoners facing the death penalty were sometimes kept in solitary confinement for decades and concluded that a number of these prisoners had become mentally ill as a result.

NGOs continued to report that prison management regularly abused the rules on solitary confinement. Punitive solitary confinement may be imposed for a maximum of 60 days, but procedures allow wardens to keep prisoners in "isolation" solitary confinement indefinitely. Officials at Fuchu Prison used such procedures to keep a foreign prisoner in isolation for the past four years. Prison officials said that solitary confinement was an important tool to maintain order in prisons that were at or above capacity.

Hazing, bullying, and sexual harassment were increasingly reported as problems in the Japanese Self Defense Forces.

Prison and Detention Center Conditions

Prison conditions generally met international standards. However, several facilities were overcrowded and lacked heating. NGOs also reported that some facilities provided inadequate food and medical care. Foreign diplomatic officials confirmed numerous cases in which the prison diet was inadequate to prevent significant weight loss, including muscular mass. Cases of slow and in some cases inadequate medical treatment were documented, including in detainees and prisoners with preexisting medical conditions. Police and prison authorities were particularly slow providing treatment of mental illness. In some institutions clothing and blankets were insufficient to protect inmates against cold weather. Most prison facilities did not provide heating during nighttime hours in winter despite freezing temperatures. The lack of heating subjected the prison population to a range of preventable cold injuries, from chilblains to more severe forms of cold injury. Foreign prisoners in the Tokyo area presented to visiting diplomatic officials chilblains-affected fingers and toes of varying severity, the direct result of long-term exposure to deleteriously cold and at times freezing conditions in prison and detention facilities during the winter months. NGOs, lawyers, and doctors also criticized medical care in police‑operated preindictment detention centers and immigration detention centers.

In 2008 there were 67,672 prisoners. Men and women prisoners were held in separate facilities in prisons and detention centers. Minors were held separately from adults in prisons and regular detention centers, but regulations do not require that minors be held separately in immigration detention centers.

Prison management regulations stipulate that independent committees inspect prisons and detention centers operated by the Ministry of Justice (MOJ) and police-operated detention facilities. The committees included physicians, lawyers, local municipal officials, representatives of local communities, and other local citizens. Prisoner rights advocates reported that the committees visited MOJ prisons throughout the year. In 2008 these committees visited a total of 207 prisons and detention facilities (not including pretrial detention facilities) and interviewed 598 detainees. The committees made 659 recommendations to the prison or detention facility superintendants, of which 366 were considered implemented or in the process of being implemented. In addition, 198 recommendations were considered as requiring either further discussion or follow-up inspections, and 95 were referred to the Ministry of Justice.

In July an amendment to the Immigration Control and Refugee Recognition Law was passed establishing an independent inspection process for immigration detention facilities.

During the year the International Committee of the Red Cross did not request any prison visits.

d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest and detention, and the government generally observed these prohibitions. NGOs continued to report instances of what appeared to be arbitrary detentions.

Role of the Police and Security Apparatus

Civilian authorities maintained effective control over the National Police Agency (NPA) and local police forces, and the government has effective mechanisms to investigate and punish abuse and corruption. There were no reports of impunity involving the security forces during the year. However, some NGOs criticized local public safety commissions for lacking independence from or sufficient authority over police agencies.

Arrest Procedures and Treatment While in Detention

Persons were apprehended openly with warrants based on sufficient evidence and issued by a duly authorized official, and detainees were brought before an independent judiciary. NGOs claimed that warrants were granted at high rates and that detention sometimes occurred even though the evidentiary grounds were weak.

The law provides detainees the right to a prompt judicial determination of the legality of the detention, and authorities respected this right in practice. The law requires authorities to inform detainees immediately of the charges against them. Authorities usually held suspects in police‑operated detention centers for an initial 72 hours. A judge must interview a suspect prior to further detention. The judge may extend preindictment custody by up to two consecutive 10‑day periods. Prosecutors routinely sought and received these extensions. Prosecutors may also apply for an additional five‑day extension in exceptional crimes such as insurrection, foreign aggression, and disturbance. NGOs pointed out that because extensions were routinely granted, the intent of the law--prompt judicial determination of the legality of the detention--was in fact undermined.

The code of criminal procedure allows detainees, their families, or representatives to request that the court release an indicted detainee on bail. However, bail is not available during preindictment to persons detained in either police or MOJ detention facilities. Because judges customarily granted prosecutors requests for extensions, the system of pretrial detention, known as "daiyou kangoku" (substitute prison), usually continued for 23 days. Suspects in pretrial detention are legally required to face interrogation. NPA guidelines limit interrogations to a maximum of eight hours. Overnight interrogations are prohibited.

Preindictment detainees had access to counsel, including court‑appointed attorneys. Prisoner advocates said that in practice this access improved in terms of the duration and frequency. However, counsel may not be present during interrogations. Family members were allowed to meet with detainees, but only in the presence of a detention officer. Article 81 of the code of criminal conduct may, regardless of the charge, prohibit detainees from having interviews with persons other than their counsel only if there is probable cause that the suspect may flee or may conceal or destroy evidence. Detainees charged with drug offenses are routinely held incommunicado until indictment and are allowed only consular and legal access. Prosecutors at their discretion may partially record suspects' confessions, but NGOs pointed out that partial and discretionary recordings could be misleading. Police in Tokyo and 46 prefectures continued e. Denial of Fair Public Trial

The law provides for an independent judiciary, and the government generally respected judicial independence in practice. In July the country began a lay judge (jury) system for serious criminal cases.

Trial Procedures

The law provides the right to a fair trial for all citizens and ensures that each charged individual receives a public trial by an independent civilian court, has access to defense counsel, and has the right to cross-examine witnesses. A defendant is presumed innocent until proven guilty in a court of law, and defendants cannot be compelled to testify against themselves.

The UN Committee Against Torture (UNCAT), NGOs, and lawyers questioned whether defendants were presumed innocent in practice. According to NGOs, the majority of indicted detainees confessed while in police custody. Safeguards exist to ensure that suspects cannot be compelled to confess to a crime or be convicted when a confession is the only evidence. In the past NGOs documented techniques used to extract confessions that include beating, intimidation, sleep deprivation, questioning from early morning to late at night, and making the suspect stand or sit in fixed positions for long periods. New NPA guidelines were created in January 2008. On April 1, the National Public Safety Commission issued regulations prohibiting the police from touching suspects (unless unavoidable), exerting force, threatening them, keeping them in fixed postures for long periods, verbally abusing them, or offering them favors in return for a confession. Defense counsel is not allowed to be present during interrogations. However, NGOs continued to report long interrogation sessions of eight to 12 hours in length, in which the detainee was handcuffed to a chair for the entire period, and aggressive questioning techniques were used.

The use of police‑operated detention centers was criticized because it puts suspects in the custody of their interrogators. The government stated that article 16 of the Act on Penal Detention Facilities and Treatment of Inmates and Detainees separates the function of investigation from the function of detention. According to government statistics, more than 98 percent of arrested suspects were sent to police detention facilities. The other 2 percent were held in MOJ-operated preindictment detention centers. More than 99 percent of cases that reached a trial court resulted in conviction. Independent legal scholars alleged that the judiciary gives too much weight to confessions, although the government disputed the assertion.

There were media reports of persons convicted on the basis of police-obtained confessions who were later proved innocent. During the year a man sentenced to life imprisonment after DNA tests led to his conviction in 1990 for the murder of a four-year-old girl in Ashikaga, Tochigi Prefecture, was released after more-accurate DNA tests exonerated him. Despite errors in the basic investigation, including autopsy findings that conflicted with the suspect's confession, the prosecutors and the courts dismissed the possibility that the confession was coerced. The same questionable DNA testing methods contributed to guilty rulings in other cases, including some involving the death penalty.

According to some independent legal scholars, trial procedures favor the prosecution, although the government disputed the claim. The law provides for access to counsel; nevertheless, a significant number of defendants reported that this access was insufficient. The law does not require full disclosure by prosecutors unless the defending attorney is able to satisfy disclosure procedure conditions. In practice this sometimes resulted in the suppression of material that the prosecution did not use in court. As a result, the legal representatives of some defendants claimed that they did not receive access to relevant material in the police record. In appeal attempts in some cases, defense attorneys were not granted access to possible exculpatory DNA evidence. The police's response in those cases was that all evidence was destroyed after the initial trial. The government's official position regarding the disclosure of evidence to defense attorneys is that any evidence, including DNA, can be disclosed through the disclosure procedure in accordance with the code of criminal procedure "if the conditions are met" (see section 4).

The language barrier was a serious problem for foreign defendants. No guidelines exist to ensure effective communication between judges, lawyers, and non‑Japanese‑speaking defendants. Several foreign detainees claimed that police urged them to sign statements in Japanese that they could not understand and that were not translated adequately. No standard licensing or qualification system existed for court interpreters, and trials proceeded even if no translation or interpretation was provided, despite the government's claims that trials cannot proceed unless translation or interpreting is provided. In Gunma Prefecture, police recruited volunteers to translate for the police during investigations.

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